BGH: hyperlinks, freedom of expression and copyright infringing software

Already decided on 14 October 2010, even though only published in its entirety now, has been a decision (case reference: I ZR 191/08; 'AnyDVD') by the German Federal Supreme Court (Bundesgerichtshof) concerning a lawsuit brought by several music companies against Heise Verlag, an online publisher specializing in IT and computer news. The claimaint's took objection to reports published on Heise’s website which included links to a third party website (SlySoft) that offered software that allowed circumventing copy protection for DVDs.

While the lower courts, the Regional and Higher Courts of Munich I, had held that Heise's online reports were itself copyright infringing, the First Civil Senate of the Bundesgerichtshof took the view that adding the links on Heise's website which linked to SlySoft's website (where SlySoft offered copyright right infringing software) was covered by the constitutional right of freedom of press and freedom of opinion under Article 5(1) German Constitution (Grundgesetz). Further, in cases where the actual text of a report was protected by freedom of expression and freedom of press, the included links would also be afforded equal protection. The judges stressed that the purpose of the links on Heise's website was not only to technically facilitate to access the SlySoft's website but the links were to be regarded as part of Heise's reporting because they were complementing and 'backing up' what was reported with additional information. The fact that the Heise was aware that the software offered on SlySoft's website was copyright infringing did not change this and so could not be blamed on Heise since the information interest of the general public was of higher importance.

The judges also argued that reports on illegal conduct (here: that SlySoft offering copyright infringing software) could be of particular public information interest. It was also important that Heise had clearly indicated in its report that SlySoft's software was copyright infringing. In this context the Bundesgerichtshof explained that protection of Article 5(1) Grundgesetz encompassed freedom of expression and freedom of media in all its aspects and was thus not limited to the content of the report, but it also included the (outer) form of this reporting. As such, it was up to Heise itself, as the subject entitled to the fundamental right under Article 5(1) Grundgesetz, to decide which form of presentation it chose for its reporting. This also encompassed the decision whether additional information about a company and its products (here: SlySoft) should be expressly used in the report and it could include the decision to publish links to SlySoft's website.

The court, inter alia, based its decision on Article 95 a German Copyright Act which is based on Article 6 of the Copyright Directive (Directive 2001/29/EC) (“Obligations as to technological measures”). Intriguingly, the Bundesgerichtshof interpreted Article 95 a German Copyright Act not only in the light of Article 5(1) Grundgesetz but also in light of Article 11 (1) of the Charter of Fundamental Rights of the European Union which stipulates as follows “(e)veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” Article 11 (2) provides that “(t)he freedom and pluralism of the media shall be respected.” Referring to the ECJ's precedent in Connolly/Commission (C-274/99 P), the Bundesgerichtshof also stressed that content and quality of a report are irrelevant when it comes to the application of Article 11 of the Charter of Fundamental Rights of the European Union.

This interesting decision can be retrieved from the Bundesgerichtshof's website here (in German).

The BGH, the "circulation" of images and a "psychogram of a murderer"

In a decision of 7 December 2010, the German Bundesgerichtshof has decided that an image archive agency which provides images from its archives to an (external) press outlet has no duty to examine the lawfulness of a final press report which uses these images as illustration, (case references: VI ZR 30/09 and VI ZR 34/09 of 7 December 2010)

What had happened? The Bundesgerichtshof's press release of 7 December 2010 tells us as follows (summary and strictly unofficial translation by tytoc collie).

The defendant in the proceedings operated a commercial image archive which press and media outlets used for sourcing images. The claimant, who had been convicted for several killings and murders, has been serving a life imprisonment sentence since 1983. German media had extensively reported about the claimant's crimes in the 1950s, 1960s and early 1980s. Upon a request by German Playboy magazine, the defendant provided the magazine with one image depicting the claimant in the 1950s and two images showing the claimant in the 1960s. Playboy magazine then used the images to illustrate a feature article about the claimant under a title which roughly translates into "The file ….psychogram of one of the murderers of the century" ("Die Akte … Psychogramm eines Jahrhundertmörders").

The claimant objected to this, stating that the defendant had circulated the images without his prior consent and as such had infringed his "right to his own image" under § 22 of the German Act on the Protection of the Copyright in Works of Art and Photographs (Kunsturhebergesetz, KUG). The claimants were of the view that their actions were protected by the human of right of freedom of the press under Article 5(1)(2) German constitution.

By way of background: The so-called ‘‘right to one’s own image’’ (Recht am eigenen Bild) under § 22 KUG is a special manifestation of the general personality right, as protected by the German constitution in its Articles 1(1) and 2(1). Under § 22 KUG, an ‘‘image’’, which includes any kind of presentation that reproduces the appearance of a person, so as to be identifiable by third parties, may only be circulated in public with the consent of the person depicted. §§ 22 and 23 KUG contain detailed provisions concerning the protection of an individual’s image.

The claimant's law suits aimed at preventing the circulation of the images. The court of first instance, the Regional Court of Frankfurt, decided in favour of the defendants (case references: LG Frankfurt am Main, 2/3 O 129/07 and 2/3 O 90/07 of 17 April 2008. On appeal, the Higher Regional Court of Frankfurt, found - partly - in favour of the claimant (case references: OLG Frankfurt am Main, 11 U 22/08 and 11 U 21/08 of 23 December 2008).

Upon further appeal, the VI Civil Senate of the Bundesgerichtshof, which is, inter alia, responsible for personality right cases, has now dismissed the claims. In its decision of 7 December 2010, the Bundesgerichtshof reiterated that the exchange/provision of lawfully archived images is protected by (the human of right of) freedom of the press as protected under Article 5(1)(2) of the German constitution. Further, in accordance with established precedents, freedom of the press not only protects the distribution of news and opinions but also protects the process of preparing the process of publication, which in particular includes the gathering of information. The court took the view that this legal background had to be taken into consideration when interpreting the terms "circulating of images" as set out in § 22 KUG. A quasi "press-internal" passing on of images by an image archive could hence not be made dependant on the owner of the image archive having to assess whether or not the press publication using of the images was lawful. It was entirely the responsibility of the actual press publisher to examine whether the use of the images was in accordance with §§ 22, 23 KUG. The depicted individual, here the claimant, did not suffer any "tangible disadvantage". The quasi "press internal" passing on of images at most affected his personality rights in a negligible way.

Merpel, who is familiar with the KUG, notes that the court of appeal, the Higher Regional Court of Frankfurt, had interpreted § 22 KUG more broadly than the Bundesgerichtshof. The Higher Regional Court had held that the defendants had a duty (akin a duty of care) by which they had to examine the lawfulness of the final publication using the images, even in cases where this was "difficult" or "unusual" . While there are good arguments to support the Frankfurt court's stricter view, this Kat feels inclined to agree with the Bundesgerichtshof's approach, which appears is little closer to reality when it interprets "circulation" as an external process, with the crucial moment being once actual publication has taken place rather than the moment when an image is sourced from an archive and passed on to another press outlet. So while this decision strengthens the scope of freedom of press it also appears to confirm that interim injunctions are the instrument of choice when it comes to potential personality right infringements.

The Bundesgerichtshof's press release of 7 December 2010 can be retrieved from the court's website by clicking here, where the lovely picture of the court top left has also been taken from.